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At Yale and in the Boy Scouts, Freedom of Association Is in the Crosshairs

The Daily Caller’s morning e-mail
today brings us two brief stories that capture nicely the growing
intolerance of the Left for people and groups holding views with
which they disagree. One arises from a decision by Yale’s Social Justice
Network (SJN) of Dwight Hall to deny membership to the school’s
Choose Life at Yale (CLAY) group. The second concerns a proposed California ban
on judges affiliated with the Boy Scouts. Both illustrate how a
bedrock American principle, freedom of association, is increasingly
being gutted by the Left’s anti-discrimination agenda.

The Yale case is straightforward. As blogger Katherine Timpf
writes, CLAY had been a provisional member of the network for the
past year, during which its members did voluntary work with a local
non-profit organization that helped pregnant women. But the vote
last week, making CLAY the first group to be denied full membership
in the network, denies CLAY further access to the hall’s resources
such as funding, vehicles, and meeting spaces. Timpf points to an
opinion piece written by the chair of the Yale chapter of the ACLU,
itself a member of the SNJ group, urging the group not to admit
CLAY because it would “divert funds away from groups that do
important work pursuing actual social justice.”

That’s par for the course on today’s campuses. It’s training for
the real world, as seen in the California case. Here, blogger
Patrick Howley writes:

The California Supreme Court Advisory Committee on The
Code of Judicial Ethics has proposed to classify the Boy Scouts as
practicing “invidious discrimination” against gays, which would end
the group’s exemption to anti-discriminatory ethics rules and would
prohibit judges from being affiliated with the group.

These politically-driven changes in status could not be limited
to the Boy Scouts, of course, but it’s a start. That point was made
in a letter to the committee from Catherine Short, legal director
of the pro-life group Life Legal Defense Foundation. The Girl
Scouts, numerous pro-life and religious groups, even the military
practice “discrimination” of one kind or another, she wrote.

The distinction between
private and public and the further distinction between reasonable
and unreasonable discrimination are being undermined.

Years ago when I was a scout leader as my son was growing up I
read a lengthy insert in the handbook meant for leaders. It
concerned sexual exploitation and the need for scout leaders to
take it seriously, prompted doubtless by experience. Given the
nature of scouting activities, often isolated in the wild, and the
need to assure both boys and their parents concerning the potential
for abuse, even if the BSA had never taken an express position on
sexual orientation, its decision to disallow gay scout leaders
would not be gratuitous.

Yet critics say that the concerns of the BSA and of scout
parents should be set aside and that gay would-be scout leaders
must be given the benefit of the doubt. That may or may not be a
fair point, substantively, but it cuts both ways, of course. Are
judges who volunteer to work with scouts presumptively unfit to
serve on the bench? The California committee seems to think so. As
Short’s letter states:

This proposed amendment has as its overtly-stated
purpose the branding of the BSA as an organization whose members
must be assumed to be biased and thus unfit for the bench. The
Committee states that “eliminating the exemption… would enhance
public confidence in the impartiality of the
judiciary.”

So is this a matter simply of which principle you apply: The
presumption goes either with the individual or with the
organization, but it must be the same in both cases, right? No, and
that takes us back to freedom of association. The BSA is a private
association. Agree or disagree with the presumption it has applied,
it has a right to set the conditions for membership, which it has
done by deciding, in part, that it does not want to run the risk,
whether reasonable or not, of allowing gay scout leaders into the
group. The courts, by contrast, are public institutions, which may
discriminate only for compelling reasons. Doubtless there are those
who believe that anyone associated with scouting must be homophobic
and incapable of unbiased judgment, but it’s not likely that that
view commands wide acceptance - not yet, at least.

Which brings us back to Yale: Here we have a set of private
associations - setting aside the gobs of public funds the
university receives. In principle, therefore, like the Boy Scouts,
SJN can be as narrow and prejudiced as it wishes and Yale’s
internal by-laws permit. But unlike the scouts, the ground for
SJN’s discrimination appears to be, if not wholly gratuitous,
pretty close to it: CLAY does not practice “actual” social justice,
it is said. Tell that to the women CLAY has helped.

And so in these two cases we have a textbook example of how the
distinction between private and public and the further distinction
between reasonable and unreasonable discrimination are being
undermined by a political agenda that has the freedom of private
association as its ultimate target.